5.24.2005

Last night 14 Senators came to an agreement to end the filibuster of President Bush's judicial nominees. The agreement says that the 14 Senators will vote for cloture on 3 nominees, Judge Owen, Judge Prior and Judge Rogers-Brown. Two other nominees, Henry Saad and William Myers, will continue to face filibuster, though neither may have majority support in an up or down vote.

I don't like the agreement because it still allows for Senators to filibuster judicial nominees for "extraordinary circumstances". It doesn't define those circumstances. What if those Senators retire? What if they are not re-elected? Needless to say, this agreement is very temporary for it doesn't really address the issue of using the filibuster in order to defeat a nomination to the court.

The historical citation of the use of the filibuster against Justice Abe Fortas in his nomination to be Chief Justice of the Supreme Court isn't applicable to the current debate. Fortas had majority support for the nomination. He was filibustered by Republican Senators that wanted to extend the debate on his nomination. The extension of debate was then use to highlight the contentious aspects to Mr. Fortas' record as a Justice. Information was heard regarding his personal consultation to President Johnson on the Vietnam War. Once this information was presented the filibuster was meaningless because Fortas lost majority support.

Today's use of the filibuster is to extend debate so as not to introduce information to change votes, but to simply delay the vote forever. No knew information has been presented since the use of the filibuster against President Bush's nominees. Democrats tried to induce nominees to abandon standard legal practice through the usurption of attorney-client privelage, but the nominees staved off the effort.

I think the Senate rules should be changed to end the use of the filibuster against judicial nominees. But I think this rule change is only because of a breakdown in politics. We have relied on the courts to settle our most contentious political issues through the cosmic interpretation of the Constitution. As long as we continue to permit judges to snake their way through the Constitution to create rights that previously never existed then we open up the flood gates for all tactics in the judicial nomination process.

We have to debate these issues in the legilsative chambers, not the judicial chambers. 9 unelected officials cannot decide the fate of the country for they continue to see words that are not there and fail to see the words that are there.